A-1-CA-34014 | Omnilex

Full text

Filed
Court of Appeals of New Mexico
10/17/2017 11:34:33 AM
Office of the Clerk
Mark Reynolds

OCR transcription for search; preserved printed pages are authoritative

10
11

12
13
14
15

16
17
18
19

Filed

Court of Appeals of New Mexico
10/17/2017 11:34:33 AM
Offige of the Clerk

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 17, 2017

NO. A-1-CA-34014

STATE OF NEW MEXICO,
Plaintiff-Appellee,

KENNETH TIDEY,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Daniel Viramontes, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Tonya Noonan Herring, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

[> |

rk Reynolds

OPINION

GARCIA, Judge.

4} Following a traffic stop that also resulted in an arrest and search, Defendant
Kenneth Tidey was convicted of one count of possession of methamphetamine with
intent to distribute, two counts of possession of drug paraphernalia, and one count of
driving with a suspended or revoked license. Defendant raised two different
challenges based upon double jeopardy grounds. First, Defendant challenges his two
separate convictions of possession of drug paraphernalia. One conviction was based
upon his possession of over ninety small plastic baggies and the second conviction
was based upon his possession of a red straw with a burnt end. As a matter of first
impression, we agree with Defendant that based upon the definition of containers
used as drug paraphernalia statutes and the insufficient indicia of distinctness
regarding the containers in his possession, the evidence does not support these two
separate convictions for possession of drug paraphernalia. We vacate Defendant’s
conviction for possession of drug paraphernalia that was based upon the numerous
small plastic baggies and affirm his conviction for possession of drug paraphernalia
that was based upon the red straw with a burnt end. As a result, we determine that it
is unnecessary to address Defendant’s second double jeopardy argument. This second

argument challenges whether his drug paraphernalia conviction for possession of the

numerous small plastic baggies and his separate conviction for possession of
methamphetamine that was contained in a small plastic baggie violate double
jeopardy. Defendant’s remaining arguments are unpersuasive and we affirm his
remaining convictions.

BACKGROUND

2} On March 17, 2012, Lieutenant Conrad Jacquez, with the Deming, New
Mexico Police Department, stopped Defendant’s vehicle in response to a tip advising
that a driver of a gray Ford Crown Victoria was driving erratically, indicating a
possible drunk or reckless driver. Lieutenant Jacquez requested Defendant’s driver’s
license, registration, and insurance. Defendant handed Lieutenant Jacquez his New
Mexico identification card. After running his identification, Lieutenant Jacquez
determined that Defendant’s license had been revoked. Lieutenant Jacquez asked
Defendant to step out of the vehicle, he advised Defendant of the reason for his arrest,
and placed him under arrest for driving on a revoked license. Defendant did not
exhibit any signs of intoxication.

3} Prior to placing Defendant in the back of the police car, Lieutenant Jacquez
asked Defendant if he had anything on his person that could hurt him. Defendant
responded that he had a knife in one of his pockets. In searching for the knife,

Lieutenant Jacquez pulled from Defendant’s left front pocket a large clear bag

containing ninety-seven empty smaller clear bags with red lips painted on them, as
well as an empty red straw with one burnt end. Not finding the knife, Lieutenant
Jacquez then searched Defendant’s right front pocket and found a similar small
plastic bag containing a white powdery substance and the knife. Lieutenant Jacquez
testified at trial that the small bags, one inch by one inch with a zip-lock top (the
baggies), are commonly used to package methamphetamine. He also testified that
straws with burnt ends are another way to package methamphetamine or other
narcotics and are never used for smoking. Lieutenant Jacquez did not find any
instruments on Defendant for ingesting methamphetamine, such as needles or pipes.
{4 Upon placing Defendant in the back of the police vehicle, Lieutenant Jacquez
asked if he could search Defendant’s vehicle. Around this time, the owner of the
vehicle arrived, and she gave Lieutenant Jacquez consent to search the vehicle.
Lieutenant Jacquez and a second officer searched the vehicle and found a pack of
cigarettes under the armrest in the front seat. Inside the cellophane wrapper of the
pack, the officers found three small baggies of the same type found in Defendant’s
pocket also containing a similar white powdery substance. At trial, a forensic crime
expert testified that the four small baggies were tested and contained
methamphetamine, but only three contained a “weighable amount.”

45} The State filed a criminal information on May 1, 2012, charging Defendant

with the following four counts: (1) trafficking in a controlled substance (by
possession with intent to distribute), pursuant to NMSA 1978, Section 30-31-
20(A)(3) (2006); (2) possession of drug paraphernalia, “straws”, pursuant to NMSA
1978, Section 30-3 1-25.1(A) (2001); (3) possession of drug paraphernalia, “plastic
baggies,” pursuant to Section 30-31-25.1(A); and (4) driving with a suspended or
revoked license, pursuant to NMSA 1978, Section 66-5-39 (1993, amended 2013).
Following a jury trial, the jury found Defendant guilty of the lesser included offense
of possession of a controlled substance (Count 1), both counts of possession of drug
paraphernalia (Counts 2 and 3), and driving without a license (Count 4). Defendant
now appeals.

DISCUSSION

16; | Defendant makes the following arguments on appeal: (1) Defendant’s drug-
related convictions violate double jeopardy, (2) the district court erred in denying
Defendant’s motion to suppress evidence for a lack of reasonable suspicion, (3) the
evidence presented at trial was insufficient to support Defendant’s convictions, and
(4) Defendant’s right to a speedy trial was violated.

I. Double Jeopardy

in Defendant makes two related double jeopardy arguments. First, he argues that

his two convictions for possession of drug paraphernalia violate double jeopardy as

17
18

the acts were not sufficiently distinct to warrant two separate charges. Second, he
argues that his convictions for possession of methamphetamine and possession of
drug paraphernalia violate double jeopardy because the jury instructions failed to
distinguish between the empty baggies in Defendant’s pocket and the baggies that
contained the white powdery substance tested to be methamphetamine.

i833 “A double jeopardy challenge is a constitutional question of law which [the
appellate courts] review de novo.” State v. Swick, 2012-NMSC-018, 4 10, 279 P.3d
747. The Fifth Amendment ofthe United States Constitution, made applicable to New
Mexico by the Fourteenth Amendment, prohibits double jeopardy. U.S. Const.
amends. V & XIV, § 1. The prohibition “functions[,] in part[,] to protect a criminal
defendant against multiple punishments for the same offense.” Swick,
2012-NMSC-018, § 10 (internal quotation marks and citation omitted). Double
jeopardy cases involving multiple punishments are classified as either
“double-description case[s], where the same conduct results in multiple convictions
under different statutes[,]” or “unit-of-prosecution case[s], where a defendant
challenges multiple convictions under the same statute.” Id.

A. Defendant’s Two Convictions for Possession of Drug Paraphernalia
Violate Double Jeopardy

{9} Defendant challenges his two convictions for possession of drug paraphernalia,

pursuant to Section 30-31-25.1(A)—one for possession of the small baggies and the

10
11
12
13
14
15
16
17
18
19
20
21

other for the red straw with a burnt end. We apply a unit-of-prosecution analysis, as
we are examining multiple convictions under the same statute. See State v. Gallegos,
2011-NMSC-027, § 31, 149 N.M. 704, 254 P.3d 655. In such cases, the appellate
courts seek to determine, “based upon the specific facts of each case, whether a
defendant’s activity is better characterized as one unitary act, or multiple, distinct
acts, consistent with legislative intent.” State v. Bernal, 2006-NMSC-050, { 16, 140
N.M. 644, 146 P.3d 289. Bernal requires us to determine the unit-of-prosecution
intended by the Legislature by employing a “two step” analysis. Jd. J 14.

First, we review the statutory language for guidance on the unit[-Jof]-
|prosecution. If the statutory language spells out the unit[-Jof[-
|prosecution, then we follow the language, and the unit-of-prosecution
inquiry is complete. If the language is not clear, then we move to the
second step, in which we determine whether a defendant’s acts are
separated by sufficient ‘indicia of distinctness’ to justify multiple
punishments under the same statute. In examining the indicia of
distinctness, courts may inquire as to the interests protected by the
criminal statute, since the ultimate goal is to determine whether the
[Legislature intended multiple punishments. If the acts are not
sufficiently distinct, then the rule of lenity mandates an interpretation
that the [L]egislature did not intend multiple punishments, and a
defendant cannot be punished for multiple crimes.

Id. (internal quotation marks and citations omitted)
{109} This Court has not previously applied the unit-of-prosecution analysis to a
possession of drug paraphernalia case involving the simultaneous possession of more

than one form of a container used for holding illegal drugs. The statute prohibiting

10
i]
12
13
14
15
16
17
18
19
20
21
22

possession of drug paraphernalia states, in pertinent part, that “[i]t is unlawful for a
person to use or possess with intent to use drug paraphernalia to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare,
test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise
introduce into the human body a controlled substance[.]” Section 30-3 1-25.1(A). The
New Mexico Controlled Substances Act defines “drug paraphernalia” as
all equipment, products and materials of any kind that are used,
intended for use or designed for use in planting, propagating,
cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the human body a
controlled substance or controlled substance analog in violation of the
Controlled Substances Act.
NMSA 1978 § 30-31-2(V) (2009). Neither the legislative definition nor Section 30-
31-25.1 indicate whether “paraphernalia” was intended to be construed as a singular
or plural noun. The dictionary defines “paraphernalia” as “personal belongings,” both
singular and plural in number. Webster ’s Third New Int’l Dictionary 1638 (3d ed.
1993). Seeing no clear indication of a unit-of-prosecution in the statute, we look to
the indicia-of-distinctness factors to determine whether Defendant’s convictions for
two different types of containers violate double jeopardy.

{1143 To determine distinctness, our appellate courts have generally looked to “time

and space considerations” of the defendant’s acts, and if such considerations proved

unhelpful, whether the “quality and nature of the acts, or the objects and results
involved” proved more useful. Bernal, 2006-NMSC-050, { 16 (internal quotation
marks and citation omitted). Our Supreme Court has summarized the factors to be
considered as follows: “timing, location, and sequencing of the acts, the existence of
an intervening event, the defendant’s intent as evidenced by his conduct and
utterances, and the number of victims.” State v. DeGraff, 2006-NMSC-011, 35, 139
N.M. 211, 131 P.3d 61. However, “even when analyzing whether an indicium of
distinctness sufficiently separates the acts of the accused to justify multiple
punishment, we remain guided by the statute at issue, including its language, history,
and purpose, as well as the quantum of punishment that is prescribed.” Gallegos,
2011-NMSC-027, { 33 (alteration, internal quotation marks, and citation omitted).

4123 In a somewhat analogous unit-of-prosecution case, the Kansas Court of
Appeals determined that the defendant’s multiple convictions for possession of drug
paraphernalia arose from the same conduct and violated double jeopardy. See State
v. Pritchard, 184 P.3d 951, 954 (Kan. Ct. App. 2008) (involving various items of
paraphernalia that were used with the intent to manufacture a controlled substance
and also with the intent to package it for sale). The Kansas court looked at similar
factors to those utilized by this Court for determining whether, under a unit of

prosecution test, the charges violate double jeopardy. See id. at 957 (addressing

“(1) whether the acts occur at or near the same time; (2) whether the acts occur at the
same location; (3) whether there is a causal relationship between the acts, in particular
whether there was an intervening event; and (4) whether there is a fresh impulse
motivating some of the conduct”). The Kansas court first reasoned that because there
were no factual findings to distinguish the two counts, the evidence was seized from
the same location, at the same time, and was intended for the same
purpose—manufacturing and storage of methamphetamine—the two convictions
arose from the “same conduct.” Jd at 957-58. Next, when the Kansas court
interpreted its manufacturing statute, the two convictions were determined to be
“multiplicitous” and were for the “same offense.” Jd. at 958-59. We agree with the
logic applied by the Kansas court, especially where a defendant could face tens or
even hundreds of counts of drug paraphernalia charges if each individual object or
container found in a suspects possession during one encounter with law enforcement
authorities constitutes a separate and distinct container-based paraphernalia offense.
a3} In this case, there was also an insignificant indicia of distinctness presented to
justify convicting Defendant oftwo counts of possession of drug paraphernalia under
Section 30-31-25.1(A). First, Lieutenant Jacquez simultaneously found the objects
available for use as containers for methamphetamine together in Defendant’s left

front pocket, the empty baggies and the red straw with a burnt end. Both

paraphernalia counts were based upon Lieutenant Jacquez’s testimony that both
objects were used for packaging, not for consumption or manufacturing. The single
jury instruction given for both counts required the jury to find that Defendant
intended to use the objects to “pack, repack, store, contain or conceal a controlled
substance.” Furthermore, there is no indication in the record of an intervening act,
multiple victims, or any other factor that would distinguish Defendant’s act of simply
possessing separate containers for holding the methamphetamine that was also found
in Defendant’s possession.

{14} The State argues that the unit-of-prosecution language in this case is clear from
the face of the statute and includes “every distinct item” that is used or intended to be
used in violation of the Controlled Substance Act. The State primarily relies on our
analysis in State v. Leeson, in which this Court concluded that the unit-of-prosecution
for sexual exploitation of children, by manufacturing pornography, was clear from the
statute. 2011-NMCA-068, J 17, 149 N.M. 823, 255 P.3d 401. This Court reasoned
that the Legislature’s more specific definitions of the terms “manufacture,”
“obscene,” and “visual or print medium” supported the conclusion that the scope of
conduct constituting a violation of the statute was “readily discernible” so as to make
each photograph manufactured by the defendant a separate and “discrete violation of

the statute.” Jd. § 16-17 (internal quotation marks omitted). However, the State

neglects to address the clear distinction from Leeson that was recognized by our
Supreme Court in cases involving the possession of child pornography. See State v.
Olsson, 2014-NMSC-012, {ff 1-2, 324 P.3d 1230 (recognizing that multiple images
of child pornography contained in three separate binders and an external computer
hard drive could only be charged as one count of possession under the applicable
statute). The possession statute’s ambiguity regarding pornographic images located
in various types of containers and the application of the rule of lenity resulted in a
single conviction in Olsson. Id. We recognize below that the statutory definitions
applicable in the present drug paraphernalia case are distinguishable from the
statutory wording that criminalizes the possession or manufacture of child
pornography. See Section 30-3 1-2(V) (setting out a non-exclusive list of definitions
for drug paraphernalia). As a result, it would be difficult to draw any strict analogies
from the child pornography cases when addressing the distinct statutory wording used
for drug paraphernalia under Section 30-31-2(V).

15} The Legislature specifically included a comprehensive list of defined items,
although not all inclusive, that constitute drug paraphernalia. See § 30-31-2(V)(1)-
(12). Critical to the present case, one defined form of paraphernalia is “containers and
other objects used, intended for use or designed for use in storing or concealing

controlled substances or controlled substance analogs[.]” Section 30-31-2(V)(10).

When we review the definitions contained in Section 30-3 1-2(V), they clearly fail to
support the State’s unit of prosecution argument. Instead, the plural words “containers
and other objects used” as paraphernalia for storing a controlled substance support
a single charge for Defendant’s numerous containers—the empty baggies and the red
straw with a burnt end. Section 30-31-2(V){10). If we were to accept the State’s
argument that the Legislature intended to prosecute each individual object used as a
“container” to hold the illegal controlled substance, then each small baggie in
Defendant’s pocket, all ninety-seven of them, would be the basis for a separate
paraphernalia charge and conviction. Based upon the statutory language and
definitions used by the Legislature, we agree with Defendant that the multiple
containers available to hold the methamphetamine in Defendant’s possession, must
be charged as one single count of possession of drug paraphernalia. We reject the
State’s argument to the contrary.

a6} Alternatively, this Court could also recognize Defendant’s argument that there
is insufficient indicia of distinctness regarding the paraphernalia containers found in
his pocket and apply the rule of lenity. See State v. Barr, 1999-NMCA-081, 7 15, 127
N.M. 504, 984 P.2d 185 (“[I]f the defendant commits discrete acts violative of the
same statutory offense, but separated by sufficient indicia of distinctness, then a court

may impose separate, consecutive punishments for each offense. With a sufficient

showing of distinctness, application of the rule of lenity would not be required.”
(internal quotation marks and citation omitted)). “[T]he rule of lenity . . . favor[s] a
single unit[-]of[-]prosecution and disfavor[s] multiple units of prosecution.” Jd. | 22.
The State did not argue that the two forms of paraphernalia containers found in
Defendant’s pocket could also be used for other distinct purposes such as ingesting,
smoking, or injecting methamphetamine. If necessary, the rule of lenity would also
support Defendant’s argument that these two types of containers only supported one
container-based count of possession of drug paraphernalia.

a7 We now reverse and vacate Defendant’s conviction for possession of drug
paraphernalia based upon the ninety-seven empty “baggies” in Defendant’s pocket
because they have the least indicia of distinctiveness from each other and the similar
baggies that contained a white powdery substance used as the substantive evidence
in Defendant’s conviction for possession of methamphetamine with intent to
distribute. We affirm Defendant’s drug paraphernalia conviction arising from the
plastic straw with the burnt end—due to its more distinctive characteristics as another
type of container to hold illegal drugs, as well as its distinguishment from the baggies
actually used to hold Defendant’s methamphetamine that was found in his right front

pocket and the pack of cigarettes.

—

11]

16].

B. Defendant’s Separate Convictions for Possession of Drug Paraphernalia
and Possession of a Controlled Substance, Methamphetamine, Do Not
Violate Double Jeopardy

18} Defendant argues that his convictions for possession of drug paraphernalia,

baggies, and possession of methamphetamine found inside similar baggies violate

double jeopardy. Defendant asserts that ifthe jury based his conviction for possession
of drug paraphernalia on the small baggies actually containing methamphetamine,
then the convictions for possession of methamphetamine and possession of drug
paraphernalia could violate double jeopardy under our decision in State v. Almeida.

See 2008-NMCA-068, 4 21, 144.N.M. 235, 185 P.3d 1085 (concluding, in a double-

description case, that “the [L]egislature did not intend to punish a defendant for

possession ofacontrolled substance and possession of [drug] paraphernalia when the
paraphernalia [charge] consists of only a container that is storing a personal supply
of the charged controlled substance.”); see also State v. Foster, 1999-NMSC-007,

4 27, 126 N.M. 646, 974 P.2d 140 (recognizing that “the Double Jeopardy Clause .

. require[s] a conviction under a general verdict to be reversed if one of the

alternative bases for conviction provided in the jury instructions is legally inadequate

because it violates a defendant’s constitutional right to be free from double jeopardy”

(internal quotation marks and citations omitted)), abrogated on other grounds by

State v. Montoya, 2012-NMSC-010, J 58, 345 P.3d 1056.

16
17

19} Inthe present case, Defendant failed to assert that his second double jeopardy
argument was based upon the drug paraphernalia conviction arising from red straw
with a burnt end. As a result, we have now removed the factual predicate necessary
for Defendant’s argument that he premised on our holding in Almeida. See 2008-
NMCA-068, J 21 (focusing on the same pipe containing the defendant’s controlled
substance as the basis for both the possession of a controlled substance and the drug
paraphernalia charges). Because Defendant does not argue that the jury was confused
by the red straw evidence or that this evidence was an improper alternative basis to
convict Defendant for possession of drug paraphernalia, it is unnecessary to address
Defendant’s second argument—a reversal of the second drug paraphernalia
conviction that was based upon the jury instruction and the jury’s potential confusion
with the small baggies that were both empty and full. See Foster, 1999-NMSC-007,
{ 27 (holding that “due process does not require a general verdict of guilty to be set
aside so long as one of the two alternative bases for conviction is supported by
substantial evidence[.]” ( emphasis, internal quotation marks, and citation omitted)).

Il. The District Court Did Not Err in Denying Defendant’s Motion to
Suppress

20} Defendant argues that the district court erred in denying his motion to suppress
because Lieutenant Jacquez lacked reasonable suspicion to stop Defendant’s vehicle.

“The Fourth Amendment to the United States Constitution prohibits unreasonable

searches and seizures by the Government, and its protections extend to brief
investigatory stops of persons or vehicles that fall short of traditional arrest.” State
v. Neal, 2007-NMSC-043, § 18, 142 N.M. 176, 164 P.3d 57 (internal quotation marks
and citation omitted). In appropriate circumstances, a police officer may “approach
a person for purposes of investigating possible criminal behavior” even if there is
insufficient probable cause to make an arrest. State v. Contreras, 2003-NMCA-129,
4 5, 134 N.M. 503, 79 P.3d 1111 (internal quotation marks and citation omitted).
Looking at the totality of the circumstances, the officer must have a reasonable
suspicion that the person is or is about to be “engaged in criminal activity.” Jd.
“Reasonable suspicion must be based on specific articulable facts and the rational
inferences that may be drawn from those facts.” State v. Flores, 1996-NMCA-059,
4 7, 122 N.M. 84, 920 P.2d 1038. An anonymous tip “must be suitably corroborated
or exhibit sufficient indicia of reliability to provide the police reasonable suspicion
to make an investigatory stop.” Contreras, 2003-NMCA-129, 45. Wereview denovo
whether Lieutenant Jacquez’s conduct was objectively reasonable. See Neal, 2007-
NMSC-043, { 19.

oi: In Contreras, this Court reversed the district court’s order suppressing
evidence obtained following a traffic stop of the defendant. 2003-NMCA-129, { 1.

The defendant was stopped and subsequently arrested and charged with aggravated

driving while under the influence following an anonymous call to police. Jd. (2. The
caller informed dispatch ofa possible drunk driver and described the vehicle as a gray
van, towing a red Geo, and driving erratically. Jd. Dispatch informed police who
subsequently stopped the defendant’s vehicle that matched the description. Jd. This
Court reasoned that, under the totality of the circumstances, the tip from the caller
“contained sufficient information and was sufficiently reliable to provide the deputies
with reasonable suspicion that a crime was being or was about to be committed” and
that “the possible danger to public safety was sufficient for the deputies to conduct
the... stop.” Jd. | 7. This Court further stated that the facts supported the inference
that “the anonymous caller was a reliable concerned motorist; the information given
was detailed enough for the deputies to find the vehicle in question and confirm the
description; and the caller was an apparent eyewitness[.]” Jd. { 21.

7223 We conclude there were sufficient facts to provide Lieutenant Jacquez with
reasonable suspicion that a crime was being or about to be committed. On March 17,
2012, a concemed citizen called the central dispatch of the Deming Police
Department to report that a big gray or silver vehicle, with a male driver, was unable
to control his lanes, was driving recklessly, and the caller believed the driver was
possibly under the influence. At the hearing on the motion to suppress, Lieutenant

Jacquez testified that dispatch sent out the details of the call, advising all units of a

possible drunk driver in a residential area, heading northbound on Copper Street.
Lieutenant Jacquez was two blocks away from the area, and when he entered Florida
Street, he saw Defendant’s vehicle, which matched the description sent out by
dispatch. Lieutenant Jacquez activated his emergency equipment, and Defendant
pulled his vehicle over after proceeding another block or two. Lieutenant Jacquez
approached the vehicle, informed Defendant of the reason for the stop, and proceeded
with his investigation.

23} As in Contreras, the anonymous tip given to the police in this case provided
sufficient information describing the color and model of the vehicle, its location and
direction on a specific street so that Lieutenant Jacquez could reliably identify
Defendant’s vehicle moments later. Under the circumstances, the caller’s tip met the
criteria discussed in Contreras for determining that the anonymous citizen tip was
sufficiently reliable. See id. J 10 (“In New Mexico, a citizen-informant is regarded
as more reliable than a police informant or a crime-stoppers informant[.]”). Although
Lieutenant Jacquez did not testify that he observed Defendant driving erratically, it
is sufficient that the caller was an eyewitness to Defendant’s reckless driving, See id.
(stating that a tip is more reliable if it is apparent the informant witnessed or observed
the details personally). Finally, the possible danger to the public of a drunk driver

presents an exigent circumstance that can tip the balance in favor of a stop. See id.

10
11

4 13 (“The reasonableness of seizures that are less intrusive than a traditional arrest
depends on a balance between the public interest and the individual’s right to
personal security free from arbitrary interference by law [enforcement] officers.”
(internal quotation marks and citation omitted)). Under the totality of the
circumstances, the stop of Defendant’s vehicle was reasonable as there are articulable
facts that Defendant was engaged in criminal behavior by driving while under the
influence. See id. 7 5 (stating that the facts surrounding a tip are viewed in light of the
totality of the circumstances). As a result, the district court did not error in denying
Defendant’ motion to suppress.

II. There is Sufficient Evidence to Support Defendant’s Conviction for
Possession of Methamphetamine

724; Defendant argues that the evidence was not sufficient to support his conviction
for possession of methamphetamine and “that no rational trier of fact could have
found him guilty beyond a reasonable doubt.” “The test for sufficiency of the
evidence is whether substantial evidence of either a direct or circumstantial nature
exists to support a verdict of guilt beyond a reasonable doubt with respect to every
element essential to a conviction.” State v. Duran, 2006-NMSC-035, 45, 140 N.M.
94, 140 P.3d 515 (internal quotation marks and citation omitted). Viewing the
evidence in the light most favorable to the verdict, the appellate courts “indulg[e] in

all reasonable inferences and resolve] all conflicts in the evidence in favor of the

verdict.” Jd. (internal quotation marks and citation omitted). The appellate courts do
“not substitute [their] judgment for that of the fact[-]finder, nor [do they] reweigh the
evidence.” State v. Smith, 2001-NMSC-004, 4 7, 130 N.M. 117, 19 P.3d 254.

25} To find Defendant guilty of possession of methamphetamine, the jury was
instructed that: “the [S]tate must prove to your satisfaction beyond a reasonable doubt
[that]: 1. [Defendant had methamphetamine in his possession... . 2. [D]efendant
knew it was methamphetamine or believed it to be methamphetamine or believed it
to be some drug or other substance the possession of which is regulated or prohibited
by law[.] ... 3. This happened in New Mexico on or about the 17th day of March,
2012.”

26} After placing Defendant under arrest, Lieutenant Jacquez found ninety-seven
empty small baggies with red lips printed on them and the straw with a burnt end in
Defendant’s left pocket. Lieutenant Jacquez testified that the small baggies and the
straw with a burnt end are commonly used to package methamphetamine. In
Defendant’s right pocket, Lieutenant Jacquez found another small plastic bag with
a white powdery substance, later identified as methamphetamine. After the owner of
the vehicle arrived and consented to a search of the vehicle, officers found three
additional baggies imprinted with the same red lips in a cigarette pack under the

armrest. Each baggie contained what was identified in a field test as

methamphetamine, later confirmed by the forensic crime expert as a “weighable
amount” of methamphetamine. Defendant testified and argues on appeal that the
cigarette pack did not belong to him. However, “[cjontrary evidence supporting
acquittal does not provide a basis for reversal because the jury is free to reject [the
djefendant’s version of the facts.” Duran, 2006-NMSC-035, 4 5 (internal quotation
marks and citation omitted). Furthermore, Defendant does not contest that the
methamphetamine found on his person was also in his possession or that he did not
know that the substance on his person was methamphetamine. As a result, there was
sufficient evidence for the jury to find Defendant guilty beyond a reasonable doubt
of possession of methamphetamine.

IV. Defendant’s Right to a Speedy Trial Was Not Violated

(27; TheSixth Amendment to the United States Constitution and Article II, Section
14 of the New Mexico Constitution guarantees the right to a speedy trial. See State
v, Garza, 2009-NMSC-038, 7 10, 146 N.M. 499, 212 P.3d 387. To determine whether
the right has been violated, we examine four factors: “(1) the length of delay, (2) the
reasons for the delay, (3) the defendant’s assertion of his right, and (4) the actual
prejudice to the defendant[.]” /@. {13 (internal quotation marks and citation omitted).
“T]he factors have no talismanic qualities, and none of them are a necessary or

sufficient condition to the finding ofa violation of the right of speedy trial.” State v.

Spearman, 2012-NMSC-023, J 18,283 P.3d 272 (alteration, internal quotation marks,
and citation omitted). This Court examines the complexity of the case to determine
whether a delay triggers a presumption of prejudice. See Garza, 2009-NMSC-038,
{ 23. “[A] ‘presumptively prejudicial’ length of delay is simply a triggering
mechanism, requiring further inquiry into the [other Barker v. Wingo, 407 U.S. 514,
530 (1972)] factors.” Garza, 2009-NMSC-038, 721. When specifically analyzing the
four factors, we review the weight attributed to each factor de novo but defer to the
district court’s findings of fact. da. FJ 19, 24.

28} Here, Defendant’s right to a speedy trial was not violated. First, assuming the
Defendant’s case was simple, the ten-month delay between Defendant’s arrest in
March 2012 and trial in January 2013 does not meet the minimum length of delay to
be considered presumptively prejudicial. See id. [41 (stating that the minimum length
of delay in a simple case to be considered “presumptively prejudicial” is one year);
see also State v. Maddox, 2008-NMSC-062, § 10, 145 N.M. 242, 195 P.3d 1254
(indicating that the right to a speedy trial attaches “when the defendant becomes an
accused, that is, by a filing ofa formal indictment or information or arrest and holding
to answer” (internal quotation marks and citation omitted)), abrogated on other
grounds by Garza, 2009-NMSC-038, J] 46-48. Although the “presumptively

prejudicial” guidelines set by the appellate courts are not bright-line rules, Defendant

does not present an argument that would otherwise require us to independently
analyze the four speedy trial factors. See Garza, 2009-NMSC-038, 7 49 (“The
situation may arise where a defendant alerts the district court to the possibility of
prejudice to his defense and the need for increased speed in bringing the case to trial,
i.e., the impending death of a key witness. Where that possibility 1s realized and the
defendant suffers actual prejudice as a result of delay, these guidelines will not
preclude the defendant from bringing a motion for a speedy trial violation though the
delay may be less than one year.”); see also State v. Smith, 2016-NMSC-007, { 59,
367 P.3d 420 (noting that “[the d]efendant must still show particularized prejudice
cognizable under his constitutional right to a speedy trial and demonstrate that, on the
whole, the Barker factors weigh in his favor”).

729} Defendant only asserts that he was prejudiced by being in custody while
awaiting trial, but makes no argument as to how his case was prejudiced in any way
due to his incarceration. See State v. Coffin, 1999-NMSC-038, 4 69, 128 N.M. 192,
991 P.2d 477 (recognizing that even when the delay slightly exceeds the
presumptively prejudicial threshold, the typical hardship and anxiety resulting from
criminal charges and pretrial incarceration only warrants enough prejudice to weigh
lightly in the defendant’s favor). As a result, we hold that Defendant has failed to

present a viable argument that his right to a speedy trial was violated.

12
13

14
15

CONCLUSION

30} For the foregoing reasons, we reverse and vacate Defendant’s convictions for
possession of drug paraphernalia that was based upon the small baggies in his
possession and affirm the conviction for possession of drug paraphernalia based upon
the red straw with a burnt end. We also uphold all of Defendant’s remaining
convictions. We remand this case to the district court for resentencing consistent with
this opinion.

313 ITISSO ORDERED.

TONATHANS. SUTIN, Judge

SMICHAET F. YGIL, Judge

TIMOTHY 4. GARCIA, Judge

October 17, 2017- State of New Mexico v. Kenneth Tidey, No. A-1-CA-34014

Full text

OCR transcription for search; preserved printed pages are authoritative

Continue your research in ChatGPT or Claude